Right to manage – Commonhold and Leasehold Reform Act 2002 – Claim notice – Respondent RTM company claiming right to manage premises on behalf of lessees – Notice in form prescribed by previous version of relevant regulations – Whether defects in notice invalidating claim – Whether notice saved by provisions of section 81(1) regarding inaccuracies in particulars – Whether notice invalid where signed by person who was not member or officer of respondent – Appeal dismissed
The appellant owned the freehold of a property that was divided into flats. In June 2011, the respondent RTM company gave notice to the appellant of its claim to acquire the right to manage the premises on behalf of the lessees of the flats pursuant to section 79 of the Commonhold and Leasehold Reform Act 2002. The appellant, by its counternotice served under section 84(2), asserted that the respondent was not entitled to acquire the right to manage since its notice was defective in various respects.
The appellant’s main contention was that the claim notice did not comply with the requirement, in section 80(8) and (9) of the 2002 Act, to contain such particulars and comply with such requirements as were prescribed by the relevant regulations. The alleged defects were that: (i) the notice was in the form prescribed by the Right to Manage (Prescribed Particulars and Forms) (England) Regulations 2003, rather than the Right to Manage (Prescribed Particulars and Forms) (England) Regulations 2010, which had replaced the 2003 Regulations by the time the notice was served; and (ii) although the form had been signed by a person authorised by the respondent, that person was not a member or officer of the company. On the latter point, the appellant contended that signature by an authorised member or officer was required by virtue of the words “Signature of authorised member or officer”, which were placed in square brackets underneath the words “Signed by authority of the company” on the form prescribed by the 2010 Regulations.
The respondent relied on the provision, in section 81(1) of the 2002 Act, that a claim notice was not invalidated by any inaccuracy in any of the particulars required by or by virtue of section 80. In the leasehold valuation tribunal, the respondent was found to be entitled to acquire the right to manage. The appellant appealed.
Held: The appeal was dismissed.
(1) The provisions of section 81(1) concerning inaccuracies in particulars were not confined to those matters in section 80(4) and (8) that were expressly described as “particulars”. To hold that they were so confined would be inconsistent with the statement, required to be included in a claim notice by virtue of regulation 4(c) of the 2010 Regulations, that the notice was “not invalidated by any inaccuracy in any of the particulars required by section 80(2) to 80(7) of the 2002 Act or this regulation”. That statement correctly stated the effect of section 81(1): Assethold Ltd v 15 Yonge Park RTM Co Ltd [2011] UKUT 379 (LC); [2011] PLSCS 251 applied; Moskovitz v 75 Worple Road RTM Co Ltd [2010] UKUT 393 (LC); [2011] 1 EGLR 95; [2011] 13 EG 108 not followed; Cadogan v Morris [1999] 1 EGLR 59; [1999] 04 EG 155, concerning the different provisions of the Leasehold Reform, Housing and Urban Development Act 1993, not binding authority on the point. Under section 81(1), a distinction had to be drawn between a failure to provide the required particulars and an inaccuracy in the statement of the particulars. A claim notice would be saved from invalidity only in the case of the latter. There was no material difference between the provisions of the 2003 and 2010 Regulations concerning the particulars that they required or the terms of the prescribed forms. The error in using the form prescribed by the 2003 Regulations should therefore be regarded as an “inaccuracy” that did not invalidate the respondent’s claim notice.
(2) The words in square brackets in the prescribed form, namely “[Signature of authorised member or officer]” did not impose a limitation on who could sign the form. The fact that the form did not require the status of the signatory to be stated suggested that the words did not impose such a limitation. It was sufficient that the person who was signing by authority of the company did in fact have that authority.
The appeal was determined on the written representations of the parties.
Sally Dobson, barrister
